can law bring about true justice?

Below is the rough text of a talk I gave yesterday at the University of Technology Sydney. I was part of a panel who were asked the question, “Is the law sufficient to bring about true justice?”

We were each given seven minutes to give a perspective (no problem!), and thus this is only a sketch of some ideas. There was then some Q&A. I was asked to bring a perspective from a) a Christian and, b) the context of TEAR Australia’s work with the global poor. As a rich, white, educated, Western male I did my best to speak on behalf of the bottom 3-or-so-billion…

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Law is a mere tool, a political construction, used by humans to achieve a certain social ends. Like any tool, it is subject to the use and abuse of the one wielding it.

Much of the time law can be understood positively – law created by those elected representatives for the good of most, of not all, people. So long as law serves in this capacity it demands our respect. Such laws help society to construct more just, albeit impersonal, structures.

However law does not always work this way. Laws too often reflect what is beneficial for the powerful in a society, not for those at the bottom, since laws are a product of those who are privileged enough to have access to the process of the legislature. I suppose such a statement places me alongside Nietzsche and his assertion that law is the embodiment of the will to power (On the Genealogy of Morals, 2.11). Some (rather cynical) opinionists will argue that the rule of law is nothing more than something shown by the officials of the political and legal systems to justify or to explain what they are already doing. The truth in this view demands attention. Truly, many of the people with whom TEAR works overseas, and indeed many Aboriginal people here in Australia, would testify to the injustices entrenched in their respective legal systems.

Even law that is beneficial for all (if there is such a thing) will only ever mark off the limits of what is deemed immoral or harmful in a society, or dictate how to appropriate resources in a generalised and impersonal way. Law is not designed to legislate any true forms of altruism or good will, let alone justice in any meaningful sense.

Does this mean that good laws are irrelevant to justice? Of course not. The rule of law can hold the state accountable to protect and deliver the rights of its people, as well as giving the people a voice in shaping political outcomes.

But rule of law is always a political construct, and as such can be manipulated by forms of hard and soft power. This is perhaps nowhere more obvious than in the field of aid and development. TEAR’s partners, found as they are in countries such as Afghanistan, Burma and Sudan, often find themselves in political situations in which the rule of law is violent, particularly towards the poor. Even in so-called “developed” nations the vast majority of wealth belongs to a small fraction of individuals who are overwhelmingly white and male. This is, at least on the surface, a situation deemed legal. Whether or not it is just is another story.

This is not in any way a problem with law, but simply an acknowledgement that laws reflect the nature and collective will of human societies, characterised as they are by inequitable relations and access to power. That is to say, the problem is not a deficiency in law (so long as we recognise its limits), but with the dislocation of human relationships.

Since law is the tool and justice is the ends, the greater question should be ‘what is true justice?’ Our definition of justice should, in my view at least, take primacy and guide our conceptions of the place of law.

Now, our concepts of justice will always be varied, since what is just is, to a large degree, subjective. In a sense all I can do is to give account of my own perspective and hope that it resonates with others.

Discussions of law and social justice tend to, at least at a public level, focus on retributive forms of justice. That is to say, justice is defined punitively.

From my own perspective, rooted as it is in certain forms of Christianity, this is fundamentally inadequate. As many of you are law students you would know that restorative forms of justice are equally (if not more) important, but given less acceptance in the public arena, and basically none in the socialising realm that we call entertainment.

In Christian terms the belief in justice for all comes from the conviction that all people are made in the image of God. In this view justice is not based in any legal system, but only ever expressed in those systems. Justice itself is the ordering of the world according to the will of God who loves all people and who desires this justice for them.

In this sense justice is about more than the reparation for wrongdoing – it is about forming communities in such a way that every person can have a full life.

The Old Testament laws provide some descriptions of what this might have looked like in terms of the social life of human communities. Strange as these laws seem to us thousands of years later, the core concept behind these laws was an equitable society by way of limits on production and regular times of redistribution according to need, not want.

Like all laws, these biblical laws were contextual according to the social situation of the time and what would result in a previously conceived notion of justice, a social vision in which everyone had enough, no one too much or too little.

In this way justice is not primarily conceived of in terms of good laws, although that is important. Instead, justice is the fostering and presence of human relationships that authentically seek the good of “the other”.

Forms of justice that are legislated are only ever provisional. That is to say, they are at best a pathway to true and lasting justice. A carbon tax or capped emissions trading legislation can, for example, lead to a certain level of justice in that some reparations could potentially be made to the victims of the effects of climate change, and the costs of certain environmental externalities are covered by those who, for whatever reason, benefit from environmental destruction. Such a form of justice is, however, only intermediate because all parties involved have not necessarily come to the table as willing participants seeking the benefit of the other.

Lasting justice can only ever come about through transformed relationships, that is, personal and social relationships which authentically seek the good of the other, of all involved. Legislation mainly provides the acceptable limits of what is deemed unjust, and can provisionally move society toward a more equitable system. However a truly just and equitable society requires more than mere law – it requires a prior conception of justice that can undergird any attempts to implement policy and law, a coherent and compassionate social vision that esteems the benefit of all above the advantage of the one. My concept comes from the long tradition of Christian thinkers with whom I resonate (though it seems to me many Christians today in the West do not feel the same way).

I want to close with a very brief story to illustrate true justice from this perspective. It is the story of a man who runs one of TEAR’s partner organisations in Poipet in the North-West of Cambodia. He was a young man during the 1975-1979 rule of the Khmer Rouge under Pol Pot. At one point he and some of his friends made a break from a collective farm, code for a forced labour camp, to reach a refugee camp in Thailand. Along the way most of this man’s friends were killed, either by gunfire or by one of the millions of landmines strewn around the country. Eventually this man made it, though without most of his friends.

Fast forward to the current day in Cambodia and this man’s organisation works doing community development in and around Poipet, for him a fundamental expression of justice for the poorest people. One of the villages around Poipet is in fact one that contains former members of the Khmer Rouge, including Pol Pot’s widow. I remember one night in Poipet this man telling us this story, recounting his agony over whether he should lead his organisation to help those who had caused so much misery for the Cambodian people.

Some would say that true justice in this case would be retribution, certainly prosecution and possibly the withholding of community programs. For this man it was the opposite – he came to realise that true justice, rooted in his faith in a gracious and forgiving God, was in fact the forgiveness of these people and a genuine attempt, as far as it was up to him, to reconcile the broken relationships. To this day his organisation continues to work amongst this community, because for Chomno true justice looks to the restoration of all people and the holistic reconciliation of human relationships.

Law is a crucial tool in the fight for justice across our world, but prior to the rule of law must come personal and societal reflection on what really matters. It is from this point that we can find ways to create laws that foster human connection and relationships in which holistic justice is forged.

Insightful stuff, as always, Matt. I particularly liked the idea of the law as an expression of justice. Having just finished Peter Rollins’ “How (not) to speak of God” I found the parallel between his work and this post quite interesting. He suggested that we write the law in order to defend an idea of justice, but as soon as the law is written we find spaces where injustice can occur. It suggests to me that there needs to be humility in how we seek to express justice through the law; of course not having any particular background in the philosophy of law, I can’t say my opinion counts for much.